Town of Princeton Loses Second Court Hearing on AvalonBay

A Mercer County Superior Court judge ruled against the town of Princeton and the Princeton Planning Board today regarding whether an affordable housing advocacy group should have the right to file an amicus brief in the AvalonBay lawsuit.

Developer AvalonBay is suing the town for denying its application to build 280 apartment units at the former downtown hospital site on Witherspoon Street. Twenty percent of the project, or 56 units, would be set aside as affordable housing if the project moves forward. Lawyers for the town argued that the Fair Share Housing Center does not have any legal standing in the case.

But Judge Mary Jacobson ruled that the Fair Share Housing Center has the right to submit a brief in the case. An amicus curiae is is someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. The amicus curiae introduces concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. The decision on whether to admit the information lies at the discretion of the court.

“I am happy the judge granted our motion,” said Kevin Walsh, associate director of the Fair Share Housing Center via phone this afternoon. “We’ve been doing this work since 1965. We have a good sense of what law is and we look forward to sharing that view with the court.”

The town of Princeton consented to the Citizens for Sustainable Neighborhoods group participating in the court proceedings, but apposed the Fair Share Housing Center’s appearance.

“The lower income folks who live in and around Princeton are entitled to have their advocate in the court, sharing what it is that helps lower income households,” Walsh said. “These developments most often require a 15-percent set aside for affordable units. This would be 20 percent. The rent cap is 30 percent of income. The housing would help some folks who are fairly needy. We are glad the judge granted our motions. This is important for 56 families who are looking for the opportunity to live in affordable housing in Princeton.”

Jacobson previously agreed to expedite the schedule for AvalonBay’s appeal.

AvalonBay cannot extend its contract with Princeton HealthCare beyond June 30, and the company said that it would walk away from the project if the court does not expedite the litigation and reverse the Princeton Planning Board’s decision by May 1. Lawyers for the town argued that AvalonBay’s request for an expedited process was unreasonable and would not allow enough time to review, but Jacobson reassured them that if the town’s attorneys needed more time for discovery and could persuade her that it was crucial, she would allow it.

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The courts are liberal in granting amicus standing to those with expertise who seek to inform the courts concerning matters of public interest. In the Avalon Bay vs. Princeton case, a well-respected, state-wide affordable housing organization sought to inform the court concerning Princeton’s affordable housing obligations. The town paid taxpayer money to fight against the affordable housing organization and lost. The result is that taxpayer money was spent to oppose an affordable housing project in a town that would hold itself out as supporting diversity in its population and, as could have been reasonably predicted, lost.

Regardless of the merits of the Avalon Bay effort, or the town’s opposition, the town’s move to oppose the petition for amicus standing was ill considered.

These attorneys are just running up fees. No one, but no one, has ever successfully opposed the right to file an amicus. Think about it: You’re saying to the court, “Court, we don’t want you to have input from disinterested third parties.” Who does that? It’s crazy, and it reeks of bad faith — moreover, it signals that one believes one is on the losing side.

A decision to oppose an amicus filing is not the decision of a talented attorney. It remains an empirical question as to whether these attorneys have Princeton’s best interest at heart, or are more focused on their own revenue stream. It appears to be the latter.

Worse, if the council approved the attorney’s recommendation to oppose the allowance of an amicus filing, then the council must be under some Svengali-like spell.